For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic has changed. The Court’s progressive wing—led first by Justice John Paul Stevens and, since his retirement, Justice Ruth Bader Ginsburg, and aided by leading academics and practitioners—have begun to stake their own claim to the Constitution’s text and history.
Just last term, in Shelby County v. Holder, Justice Ginsburg used the text and history of the 15th Amendment to chastise the Court’s conservatives for ignoring the Constitution, second-guessing Congress, and gutting the Voting Rights Act. Similarly, in the Affordable Care Act (ACA) case a year earlier, Justice Ginsburg drew upon the Constitution’s text and history to defend Congress’s power to enact the ACA, explaining that the Founders gathered in Philadelphia to create a national government with sufficient power to address genuinely national problems like the health care crisis. It is with good cause, then, that Justice Ginsburg recently declared, “I count myself an originalist too.”
There are a number of themes that unite the cases on the docket for the Court’s upcoming term. For example, commentators are right to highlight the aggressive calls by conservative legal activists to overturn longstanding Court precedent. But there’s another important theme that ties together many of this term’s biggest cases—the growing left/right battle over the Constitution’s original meaning.
Take, for instance, McCutcheon v. FEC—a sequel to Citizens United. This important campaign-finance case involves a constitutional challenge to federal limits on the total amount of money that wealthy donors may contribute to candidates and political committees during a given election cycle. However, rather than simply resting on well-established Court precedent or reasonable policy arguments, progressives are also drawing upon cutting-edge research by Professors Lawrence Lessig and Zephyr Teachout to argue that the Founders’ original understanding of corruption supports broad federal power to safeguard the integrity of our democratic process, including through federal aggregate contribution limits like those at issue in McCutcheon.
Or, consider National Labor Relations Board (NLRB) v. Noel Canning, a U.S. Chamber of Commerce-led assault on the president’s recess appointments power. There, the Chamber and its client, Noel Canning, are challenging three of President Obama’s former recess appointments to the NLRB—an important body that oversees federal laws addressing wages and workplace conditions. In response, progressives, including the Obama administration, have pressed the Court to keep faith with the Founders and uphold the challenged appointments—in the process, drawing upon the Founders’ vision of a strong, independent executive branch led by a single president on duty and tasked with executing the nation’s laws 24-7, 365 days a year, including when the Senate is unavailable to offer its advice and consent.
Finally, a similar dynamic is at play in Bond v. United States. While the specific legal issue in Bond is limited to Congress’s power to pass laws to implement valid treaties, a broad ruling could also significantly limit Congress’s power to enact laws under the Necessary and Proper Clause in other contexts. However, rather than ceding the Constitution’s text and history to conservative legal organizations seeking to limit Congress’s power and overturn nearly a century’s worth of precedent, progressives are fighting back with originalist arguments of their own—reminding the Court that, in ditching the dysfunctional Articles of Confederation, the Founders sought to create a strong national government with the power to negotiate treaties with foreign nations, pass laws to fulfill those treaty obligations, and, in turn, enhance the young nation’s international reputation.
And these are just the cases already on the Court’s docket. Similar battles over original meaning loom on the horizon and may yet reach the Court this term, including an important Fourth Amendment challenge addressing a police officer’s power to search an arrestee’s cell phone (including her emails, contacts, pictures, etc.) without a warrant, as well as a set of blockbuster cases involving “free exercise” challenges by secular, for-profit corporations to the ACA’s contraception mandate.
With both the legal left and the legal right fully engaged, the battle over the Constitution’s original meaning will be one of this term’s biggest stories.
Doug Kendall is the Constitutional Accountability Center’s founder and president. Tom Donnelly is Constitutional Accountability Center’s message drector and counsel.
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